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Balancing Constitutional Rights: Introduction

This Working Paper presents the Introduction to my new book "Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse" (Cambridge University Press, November 2013, ISBN 978-1107044418). The language of balancing is pervasive in constitutional rights jurisprudence around the world. This book offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. I argue instead that "balancing" has always meant radically different things in different settings. The book makes use of detailed case studies of early Postwar US and German constitutional jurisprudence to show that the same unique language expresses both biting skepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.